Lodders Solicitors

This Practice Note summarises the public’s statutory right to roam under the Countryside and Rights of Way Act 2000, including the basic definition of access land, the 13 general exceptions where the right to roam does not apply, the restrictions on the use of access land, and the duty of the Natural England and Natural Resources Wales to review the maps at roughly ten-yearly intervals. It notes that the access authorities, which are the National Park Authorities, the highway authorities and the Broads Authority, may construct means of access to access land, and make byelaws regulating the use of access land.

This Practice Note explains that while the Highways Act 1980 expressly excludes ferries from its definition of a highway, the common law view of ferries is that they are special type of highway with particular rights and obligations. It examines the case law relating to ferry franchises, the obligations of a ferry owner and the rights of those seeking to use a ferry.

This Practice Note explains that the width of a highway is primarily a question of fact, at common law requiring evidence amounting to proof of the minimum width required to take the traffic entitled to use it. It notes that in the absence of proof, the Highways Act 1980 (HiA 1980) provides minimum and maximum widths. It also describes the different types of boundaries, explaining that there is often physical evidence of the lateral boundaries of a highway, but that it is a question of fact in each case and notes that highway authorities may widen a highway or erect new bridges or footbridges under HiA 1980.

This Practice Note discusses case law on the highway authority’s duty to maintain a highway at the public expense during adverse weather conditions. These reveal that a distinction is drawn between a permanent danger due to want of repair and a transient danger due to the elements and that a highway authority can only be expected to do what is reasonable and cannot be expected to perform daily miracles during the winter.

This Practice Note discusses the common law on highway diversions, explaining that it is the passage from A to B that is important, not the precise piece of ground over which the right to travel is thought to exist, and highway closure by natural causes. Moreover, it explains when a highway on or near to the coast is destroyed by incursions from the sea, the courts will not insist that the authority responsible for its maintenance must restore it to a usable state.

This Practice Note explains the law of nuisance in relation to highways, noting that the common law on this issue is expressly preserved by section 333 of the Highways Act 1980. It discusses the circumstances in which builders’ works, scaffolding and skips, racing and unsuitable traffic, stationary traffic and bridges and beams across the highway may be a nuisance, referring to common law and statute. It also provides an overview of potential nuisances from adjoining property, including domestic or farm animals, pigeons, smoke and fumes and trees.